Vol. 77, No. 10, October
Court of Appeals Digest
This column summarizes selected published opinions of the Wisconsin
Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer
invite comments and questions about the digests. They can be reached at
the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee,
WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Fee Splitting - Former Associates
Piaskoski & Assocs. v.
Ricciardi, 2004 WI App 152 (filed 1 July 2004) (ordered
published 25 Aug. 2004)
This appeal raised several important issues regarding the division of
fees between a law firm and a lawyer who formerly worked for the firm.
Attorney Ricciardi worked for a law firm as an associate for about 15
months. After he voluntarily left the firm, Ricciardi continued to
provide representation for several personal injury clients. When one of
those cases resulted in a fee of nearly $230,000, Ricciardi refused the
firm's request that it receive half the fee in accordance with an
alleged termination agreement. The firm sued Ricciardi, and the trial
court granted summary judgment in the firm's favor, finding that the
parties had entered into a binding contract to split equally any
contingency fees in certain enumerated cases, including this one.
The court of appeals, in an opinion written by Judge Deininger,
affirmed. First, the trial court properly granted summary judgment based
on the undisputed evidence that Ricciardi and the firm had agreed to
divide equally any fees on specified cases. Resolution of this issue
involved the court's review of the summary judgment record and raised no
novel questions of law or policy.
Second, Ricciardi contended that such a fee-sharing contract was
unenforceable because it contravened SCR 20:1.5(e), especially the
requirement that any division must be "in proportion to the services
performed by each lawyer[.]" Ricciardi asserted that upon his departure
from the firm he assumed sole responsibility for this case, and there
was no indication that an equal division was in proportion to the
"services performed" by each party (¶ 18). The court held, however,
that SCR 20:1.5(e) did not apply to the agreement between Ricciardi and
the firm. "This was not a fee division 'between lawyers who are
not in the same firm,' but a division between lawyers who were in the
same firm when [the client's] representation began" (¶ 19).
[Note: The court expressly declined to decide whether a
violation of SCR 20:1.5 "either permits or compels a court to void a
fee-sharing contract on public policy grounds." See ¶ 19
In part, the court relied upon a 1994 decision and held that "as long
as the issue of how to apportion fees received in the future for clients
whose representation began while Ricciardi was associated with the firm
remained unresolved, the parties were . . . lawyers 'in the same firm'
within the meaning of SCR 20:1.5(e)" (¶ 23). The court found
support for its "same firm" conclusion in other SCR provisions and in
the rationale behind SCR 20:1.5(e). As to the latter, the court looked
to the fact that the firm had not referred the case to Ricciardi because
of his willingness to split the fee; rather, the client had "simply
followed his lawyer out of the firm with whom the lawyer had been
practicing when the representation arose." Furthermore, the fee was not
higher because of the agreement to divide it equally. In short, the case
presented none of the "ills the rules seeks to prevent" (¶ 25).
Finally, nothing in the history of SCR 1.5 undercuts the court's
conclusion. Indeed, the Wisconsin rule is taken from the ABA's Model
Rules of Professional Conduct. The court noted that "in 2002, the ABA
added the following sentence as part of the official commentary to Model
Rule 1.5: 'Paragraph (e) does not prohibit or regulate division of fees
to be received in the future for work done when lawyers were previously
associated as a firm.' Although Wisconsin has not yet adopted this
additional comment, we have no reason to believe that it does not
accurately describe the intended scope of SCR 20:1.5(e)" (¶ 28)
The court also addressed two issues raised on cross-appeal by the
firm. First, the trial court properly exercised its discretion when it
denied the firm's untimely request to amend the complaint to include
still other client files. Second, the trial court properly denied the
firm's request for attorney fees. Ricciardi's defense was not frivolous
and the contract contained no reference to attorney fees. Thus, under
the American Rule, the firm had to bear its own attorney fees.
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Amended Complaint - "Relation Back" -
Bartels v. Rural Mut. Ins.
Co., 2004 WI App 166
(filed 7 July 2004) (ordered published 25 Aug. 2004)
Roy Bartels stopped to render aid at the scene of a car accident.
Another person, Fox, also stopped to assist. Bartels was killed when
another vehicle collided with Fox's parked car, which in turn struck
Bartels. The day before the statute of limitation expired, Bartels'
estate filed a complaint that alleged: 1) negligence by the driver who
hit Fox's car; 2) an underinsured motorist (UIM) claim against Bartels'
insurer; and 3) a UIM claim against Rural Mutual, which insured Fox's
car. The estate did not allege that Fox was negligent or pursue a direct
action negligence claim against Rural based on its liability coverage.
Three months later, however, the plaintiffs amended the complaint to
include negligence claims against Fox and Rural. The trial court granted
Rural's motion to dismiss the amended complaint on the grounds that the
statute of limitation had expired and that the complaint could not
"relate back," because the plaintiffs had not served Rural with the
original summons and complaint within 90 days of the original
The court of appeals, in a decision authored by Chief Judge Cane,
affirmed. "First, the Bartelses' amended complaint did more than simply
add a claim; it also added a new party, namely, Rural. However, this
addition contravenes the relation-back statute, Wis. Stat.
§802.09(3), and therefore vitiates Rural's statute of limitations
protections" (¶ 12). "[D]espite being named in the original action,
because Rural was never served in the original action, Rural could not
have been a party to the original action. Therefore, by including Rural
in the amended complaint, the Bartelses have added a new party" (¶
13). By so doing, the plaintiffs contravened several requirements of
Wis. Stat. section 802.09(3); namely, they failed to provide Rural with
adequate notice within the "prescribed limitations period" (¶
The plaintiffs' stratagem also failed because of the "fundamental
defect" that occurred when they failed to serve Rural within 90 days of
filing. "A fundamental defect deprives the circuit court of personal
jurisdiction over the defendant, and renders the original pleading a
legal nullity. A fundamental defect is 'fatal to the action,' warrants
dismissal of the action, and may 'prevent [the plaintiff] from having
his [or her] day in court'" (¶ 16) (citations omitted). "Given the
nature and consequences of a fundamental defect, we conclude a
fundamental defect cannot be remedied with an amended pleading. To
conclude otherwise would furnish a complainant with a loophole in which
the consequences of failing to follow the strictures for commencing an
action are removed. In those circumstances, fundamental defects become
less significant than even technical defects; they simply become
incidental defects, defects that are rendered inconsequential by merely
following the procedure for amending a pleading. Furnishing a
complainant with an escape of this sort is not only inimical to the idea
of fundamental defects, it would contravene their consequences" (¶
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Sexual Assault of Patient or Resident of Inpatient Health Care
Facility - Statute Inapplicable to Federal Facility
State v. Powers,
2004 WI App 156 (filed 29 July 2004) (ordered published 25 Aug.
The defendant was charged with violating Wis. Stat. section 940.225
(2)(g), which prohibits an employee of a facility or program specified
in the statute from having sexual contact or sexual intercourse with a
patient or resident of the facility or program. Various facilities are
identified by the statute, including "inpatient health care
The pleadings alleged that the defendant was an employee of an
"inpatient health care facility," specifically, the Tomah VA Medical
Center, which is operated by the U.S. Department of Veterans Affairs
(VA). The defendant moved to dismiss the case, contending that only
employees of inpatient health care facilities that are licensed or
regulated by the Wisconsin Department of Health and Family Services are
subject to prosecution under the statute cited above. The circuit court
denied the motion.
On appeal the state conceded the validity of the defendant's
argument. The court of appeals agreed with the parties and therefore
reversed the circuit court. In an opinion authored by Judge Deininger,
the court held that an employee of a health care facility operated by
the VA is not subject to prosecution for an alleged violation of section
940.225(2)(g). The Tomah VA Medical Center is neither an "inpatient
health care facility" nor any other type of facility or program to which
the statute applies.
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Breach of Plea Agreement - Failure of Defense to Object -
Ineffective Assistance of Counsel
State v. Liukonen,
2004 WI App 157 (filed 22 July 2004) (ordered published 25 Aug.
As part of a plea agreement, the prosecutor agreed to "cap" the
amount of prison time he recommended for the defendant at a specified
number of years. Although the prosecutor made the agreed-upon
recommendation at the sentencing hearing, the defendant contended that
he was entitled to resentencing before a new judge because the
prosecutor breached the plea agreement by making comments implying that
the defendant deserved a longer sentence than the one formally
recommended by the state. The circuit court did in fact impose a
sentence that was longer than the one recommended by the prosecutor.
In a decision authored by Judge Lundsten, the appellate court agreed
that the prosecutor breached the plea agreement. Among other things, the
prosecutor argued that the defendant would be getting "a tremendous
break" if the trial court went along with the prosecutor's recommended
sentence. The appellate court believed that the prosecutor's comments
communicated to the circuit court that the prosecutor was making the
plea agreement recommendation because he was bound to do so, not because
he thought it constituted an appropriate prison term.
The court indicated that "plea agreements in which a prosecutor
agrees to cap his or her sentencing recommendation and hopes the court
will impose the full recommendation 'represent a fine line for the State
to walk.' When making sentencing arguments in these situations, nothing
prevents prosecutors from supplying information that supports a harsher
sentence than the one recommended by the prosecutor" (¶ 10)
(citation omitted). "Prosecutors may provide relevant negative
information and, in particular, may provide negative information that
has come to light after a plea agreement has been reached. However,
prosecutors may not make comments that suggest the prosecutor now
believes the disposition he or she is recommending pursuant to the
agreement is insufficient" (¶ 11).
The issue was waived by the defendant's failure to object to the
breach at the time of sentencing. However, the appellate court remanded
the case to the circuit court for further proceedings on the issue of
whether defense counsel performed deficiently by failing to object to
the prosecutor's comments at sentencing. The court stated that remand
was necessary because the court could not determine from the record
whether counsel had a strategic reason for failing to object and because
the record does not disclose whether counsel consulted with the
defendant about the plea breach before proceeding with sentencing.
As explained in an earlier decision, when a prosecutor breaches a
plea agreement by arguing for a harsher sentence than the one the
prosecutor agreed to recommend, the agreement has "morphed" into a new
agreement. Thus, defense counsel must consult with the defendant and
receive verification that the defendant wishes to proceed with the "new"
plea agreement. Even a strategically sound decision by defense counsel
to forego an objection to a prosecutor's breach without consulting with
the defendant constitutes deficient performance because it is tantamount
to entering a renegotiated plea agreement without the defendant's
knowledge or consent. See State v. Sprang, 2004 WI App 121.
Further, "because counsel's deficient performance involved a breach of a
plea agreement, [the defendant] is automatically prejudiced" (¶ 21)
On remand, it must be determined whether consultation occurred and
whether the defendant agreed to proceed despite the breach. If neither
circumstance occurred, the defendant is entitled to resentencing before
a new judge regardless of whether his counsel had a valid strategic
reason for failing to object to the breach.
Unlawful Interrogation - "Impelled" Trial Testimony
State v. Anson,
2004 WI App 155 (filed 21 July 2004) (ordered published 25 Aug.
Anson was convicted of sexual assault. In a prior appeal, the court
held that police interrogation procedures violated Anson's Sixth
Amendment right to counsel and that his statements should have been
suppressed. The court remanded the matter for a determination of whether
there was a "link" between the inadmissible statements and Anson's
decision to testify at trial, and thus whether a new trial was
necessary. See 2002 WI App 270. On remand, the trial court
found that there was no such link.
The court of appeals, in an opinion written by Judge Snyder, reversed
and remanded the matter for a new trial. The "ultimate issue" was
whether Anson waived his right against self-incrimination when he
testified. In light of the unlawful interrogation and the state's
introduction of inadmissible statements, the case law (the
"Harrison/Middleton" rule) required a two-part analysis.
"First, the court must determine whether the trial testimony was
impelled by the prosecution's wrongful use of the illegally obtained
confession. If not, the court must then decide whether the incriminating
statements would have been repeated in the trial testimony had the
illegally obtained confession been suppressed. In other words, Anson's
decision to testify and the content of his testimony are to be
scrutinized" (¶ 10).
Turning to the appropriate procedures, the court held that at an
evidentiary hearing under the Harrison/Middleton rule, "the
State may examine the defendant or defendant's counsel regarding the
defendant's reason for testifying, and may use the entire record to meet
its burden of showing that its use of an unlawfully obtained statement
did not induce the defendant's trial testimony" (¶ 12).
On the record before it, the court of appeals held that the trial
court improperly exercised its discretion when it found that the
inadmissible interview had not impelled Anson's trial testimony. First,
the trial court "mischaracterized the inquiry" and applied the wrong
legal standard. "Had Anson's inadmissible statement been properly
suppressed, he had a compelling and constitutionally sound reason not to
testify: the Fifth Amendment protection against self- incrimination.
More importantly, he would have had the opportunity to weigh that
protection against the benefits of testifying to refute legally
introduced evidence" (¶ 21).
Second, the trial court did not "explicitly identify the historical
facts underpinning its decision" and occasionally referred to "facts not
in evidence" (e.g., the family's "courtroom interaction")
(¶ 22). Third, the trial court did not address the second part of
the test, namely, "whether Anson would have repeated the incriminating
statements on the stand had the California statement been properly
suppressed" (¶ 23). The court of appeals found it "interesting"
that the state elected not to call Anson as a witness at the evidentiary
hearing or attack the credibility of his trial counsel, who testified
that the inadmissible (incriminating) statements impelled Anson's
decision to testify.
In conclusion, the court succinctly stated that "[t]he competing
inference, that Anson was not impelled by the State's illegal use of his
statement, is unreasonable in light of the facts" (¶ 25).
Cost of Repair - "Aftermarket" Parts
De Ruyter v. American Family
Ins. Co., 2004 WI App
162 (filed 7 July 2004) (ordered published 25 Aug. 2004)
De Ruyter sued American Family on grounds of "breach of contract, bad
faith and unjust enrichment based on American Family's proposed use of
aftermarket or salvaged parts, as opposed to new, original equipment
manufacturer ('OEM') parts, to repair De Ruyter's vehicle after a
collision. De Ruyter alleged that American Family's policy did not
contain a provision that limits its liability to the cost of non-OEM
parts and that American Family intentionally conceals this limitation on
benefits until after an insured has suffered a loss and a claim is made"
The circuit court dismissed the complaint for failure to state a
claim. The court of appeals, in an opinion written by Judge Nettesheim,
affirmed, because the policy, as a whole, sufficiently alerted a
reasonable person to the insurer's intent to use non-OEM parts to
restore vehicles. De Ruyter balked when the insurer sought to use a
"quality replacement" bumper to repair his car, a 1997 model with
100,000 miles. "Significantly, De Ruyter does not allege that the use of
a replacement part would not have restored his vehicle to its
pre-collision or pre-loss condition. Based on the language of American
Family's policy, a reasonable insured could have expected coverage for
only the loss due to the collision, whether or not the repairs required
the use of OEM parts. The insured could not reasonably have expected
coverage for loss resulting from the wear and tear of the vehicle's use
prior to the collision" (¶ 12).
Nor did the policy contravene the "clear language" mandate of Wis.
Stat. section 631.45: the use of appropriate non-OEM parts was not a
"limitation of liability above and beyond those stated in the policy"
(¶ 13). The court also rebuffed De Ruyter's contention, rooted in
non-Wisconsin case law, that the policy should have used the phrase
"like kind and quality." Finally, the court of appeals underscored that
the language of the insurance policy controls and that insurers may not
rely on Wis. Stat. section 632.28 to "create an independent basis to
allow for the use of non-OEM parts when the underlying insurance
contract does not provide for their use" (¶ 16).
Autos - Loss of Value - Loss of Use
Hilliard, 2004 WI App 151 (filed 8 July 2004) (ordered
published 25 Aug. 2004)
The plaintiff's minivan was damaged in an accident about five months
after it was purchased. The tortfeasor insurer agreed to repair or
replace the vehicle, which cost about $24,500 new. About a week after
the accident, the plaintiff rented a vehicle and about one month later
he bought a new minivan. When the damaged vehicle was returned to him,
the plaintiff sold it for $19,000. The insurer paid about $11,000 to
"repair" the minivan. The issues in this case concern rulings in which
the trial court denied the plaintiff's claims for loss of value and loss
As to the loss-of-value claim, the plaintiff's "basic argument is
simple. He argues that the purpose of damages is to make him whole and
that he has not been made whole because the value of his minivan before
the accident was approximately $23,000 and the value of his minivan
after it was repaired and returned to him was $19,000. American Family
does not discuss whether [the plaintiff] was made whole. Instead, the
insurance company argues that 'well established' case law in Wisconsin
limits [the plaintiff's] damages to the cost of repairs made to his van"
In a decision authored by Judge Lundsten, the appellate court held
"that when a plaintiff proves that repairs to personal property have not
restored the property to its pre-injury value, and the plaintiff
demonstrates that he or she has been or will be harmed by such loss in
value, the plaintiff is entitled to damages for the proven lost value"
The holding carried several qualifications. "First, a particular area
of law may contain an established exception to the general make-whole
rule. 'The rules for measuring damages for loss of personal property are
governed by a variety of concepts that attempt to make the owner whole
for the loss sustained as a result of another's negligence. Economic
concepts, however, limit the make-whole doctrine in order to minimize
damages and avoid economic waste'" (¶ 26). "Second, we do not
address what should happen if repair costs plus
loss-of-value-after-repair damages exceed the fair market value of an
item pre-injury. Perhaps in this scenario the availability of damages
exceeding pre-injury fair market value may depend on how the decision to
repair the vehicle is made. Perhaps not. We do not weigh in on the
topic" (¶ 27). On the record before it, the court of appeals
determined that summary judgment was inappropriate, and the court
remanded the case for further proceedings.
The court next addressed the loss-of-use claim. The circuit court had
found that when the plaintiff bought the second minivan, he was no
longer entitled to loss-of-use damages. The court of appeals, however,
agreed with the plaintiff "that when a vehicle is repaired and returned
to its owner, the relevant loss-of-use time period does not end simply
because the owner decides to cope with loss of use by purchasing a
vehicle" (¶ 31). Put differently, "[h]ow [the plaintiff] dealt with
the loss of use of his damaged minivan was up to him. The germane
question on summary judgment - or for the fact finder should that be
necessary - is the amount needed to compensate [the plaintiff] for loss
of use from the time of the accident to the time his minivan was
repaired and returned to him" (¶ 36). The court of appeals remanded
for a determination of whether there was a factual dispute on this
Judge Dykman concurred on the substantive issues but dissented from
the majority's view that the plaintiff had failed to comply with the
trial court's summary judgment procedure order, which required the
parties to submit a "proposed finding of fact" or a stipulation. The
dissent found no authority for such an order.
Annuities - Dividends - Fiduciary Duty
Noonan v. Northwestern Mut.
Life Ins. Co., 2004 WI
App 154 (filed 22 June 2004) (ordered published 25 Aug. 2004)
The plaintiffs held annuities issued by Northwestern Mutual Life
Insurance Co. (NML). In 1983 they agreed to an annuity contract
amendment under which "dividends were paid on [NML's] overall financial
performance measured by the return on a general account portfolio of
investments" (¶ 5). In 1985 NML "changed the way it distributed
dividends" by creating a "segmented account invested in short-term
bonds. Owners of annuities then received a share of interest earned on
the short-term bonds only" (¶ 6). The plaintiffs first learned of
the 1985 change in 2000 and commenced this suit. The trial court
dismissed their complaint for failure to state a claim.
The court of appeals, in an opinion written by Judge Peterson,
reversed the trial court. First, the complaint pleaded a claim for
breach of contract, which was not foreclosed by the "business judgment
rule." The dispute was about more than the "apportionment of the
divisible surplus"; rather it was based on NML's "decision to
predetermine the source of the annuities' dividend - the short-term bond
fund - irrespective of the overall divisible surplus" (¶ 16). "The
contracts state that annuity policyholders 'will share in the divisible
surplus of the Company' and the 'share shall be determined annually and
credited as a dividend.' Wisconsin Stat. §632.62(4)(b) mandates how
the divisible surplus is to be determined. Every year Northwestern must
(1) ascertain the surplus over required reserves and liabilities and (2)
subtract necessary contingency reserves, funds for orderly growth,
dividends for capital stock and sums required by prior contracts. After
the surplus is determined, then and only then must Northwestern decide
how to equitably apportion the surplus. Here, Northwestern made the
allocation to annuity policyholders before it determined the surplus.
This is contrary to the terms of the annuity contracts and the
Second, the plaintiffs also stated a claim for breach of fiduciary
duty, contrary to NML's assertion that its relationship with annuity
policyholders was one of "debtor and creditor" (¶ 19). Although a
"typical annuity" may be no more than a contractual relationship, the
NML annuities "involve more"
(¶ 23). NML has an obligation to act for the benefit of its
policyholders, who are dependent upon its investment decisions and "are
thus in an inferior position" to NML (¶ 25). The court also held
that the fiduciary obligation extended to NML's officers and directors,
who also were named in the lawsuit.
Finally, the court of appeals rejected NML's contention that the
claim should be denied on any of three other grounds: 1) NML argued that
"primary jurisdiction" reposed in the office of the insurance
commissioner, not the courts; the court held that NML's alleged breach
of contract and the statute involved questions of law that fell outside
the exclusive province of the insurance regulators. 2) NML also argued
the statute of limitation barred the claim. The court held that NML's
alleged conduct fell within the "continuing violation" rule. 3) NML's
final claim was that the economic loss doctrine foreclosed the claim.
The court responded that NML failed to "develop an argument" that the
doctrine should extend beyond the realm of "defective products"
(See ¶¶ 29-34).
Local Government Contracts - Failure of Municipality to Ensure Prime
Contractor Obtains Payment Bond - Timeliness of Claims
Holmen Concrete Prods. Co.
v. Hardy Constr. Co., 2004 WI App 165 (filed 29 July 2004)
(ordered published 25 Aug. 2004)
The village of Readstown contracted with Hardy Construction Co. for
Hardy to be the prime contractor on a construction project. Although the
village's contract with Hardy required the latter to obtain a payment
and performance bond, the village failed to ensure that this occurred.
Hardy then subcontracted with the plaintiffs to provide materials and
labor on the project. Though the subcontractors performed their
obligations under the agreement, the prime contractor failed to pay them
and they submitted claims to the village, which paid a portion of the
amount due. However, full payment was not made. The plaintiffs then sued
the prime contractor and the village to recover the unpaid portion of
The circuit court granted the plaintiffs' motion for summary judgment
against the village. It concluded that the village was responsible for
damages resulting from its failure to ensure that the prime contractor
had obtained a payment and performance bond under Wis. Stat. section
779.14. In so holding, the circuit court rejected the village's position
that it had no duty to assure that the contractor secured a bond. The
village argued that a 1997 revision of section 779.14 deleted this
In a decision authored by Judge Dykman, the court of appeals
affirmed. It concluded "that a municipality is responsible for failure
to ensure that a prime contractor obtains a payment bond because the
1997 statutory revision did not remove liability for breach of this duty
as explained in Cowin & Co., Inc. v. City of Merrill, 202
Wis. 614, 223 N.W. 561 (1930)" (¶ 2). The court concluded that
Cowin continues to impose a duty upon municipalities to ensure
that a prime contractor obtains an appropriate payment and performance
bond. The court said that the policies supporting the Cowin
rule remain pertinent today. "Municipal liability for failure to ensure
that a contractor furnishes a proper bond protects subcontractors,
taxpayers and the municipality itself" (¶ 18).
With respect to the timeliness of the plaintiffs' claims, the court
of appeals concluded that the ordinary time and filing requirements of
the notice of claim statute (Wis. Stat. § 893.80) applied to the
plaintiffs' claims against the village and that the plaintiffs complied
with the statute. The court rejected the village's argument that the
20-day statute of limitation under section 779.15(4)(a) applied. This
statute deals with construction lien claims that can be asserted against
funds held by a public owner on a public project. "The lien claims
statute does not apply to claims arising from the breach of a
municipality's duty to require a payment and performance bond" (¶
Requirement of Residence in Wisconsin County at Time Petition is
Filed - Constitutional Challenge Based on Right to Interstate
Grant County Dep't of Soc.
Servs. v. Unified Bd. of Grant & Iowa
Counties, 2004 WI App 153 (filed 1 July 2004) (ordered
published 25 Aug. 2004)
Jane is a 46-year-old woman who suffers from Wernicke's
encephalopathy and is unable to handle her finances and property and to
meet her basic needs. She currently resides in a nursing home in
Illinois, having been placed there pursuant to an Illinois guardianship
proceeding. The guardian is her sister.
Because many of Jane's family members live in southern Grant County,
Wisconsin, they want Jane to reside at the privately-owned Southwest
Health Center Nursing Home in Grant County. Through the office of Grant
County corporation counsel, the guardian filed a petition for
guardianship and protective placement in Grant County.
The Grant County Circuit Court signed an order for comprehensive
evaluation that was directed to the Unified Board of Grant and Iowa
Counties, the agency responsible for performing evaluations on
individuals who are the subject of guardianships because they suffer
from mental illness, developmental disability, or other incapacities.
The board instead sought to have the petition dismissed, arguing that
the circuit court lacked competence to proceed because Jane was not a
Wisconsin resident. The circuit court granted the board's motion and the
county appealed. In a decision authored by Judge Higginbotham, the court
of appeals reversed.
The question presented to the appellate court was whether the
requirement of Wisconsin's protective placement statute that a proposed
ward reside in a Wisconsin county at the time a petition is filed
(see Wis. Stat. § 55.06(3)(c)) violates the ward's
constitutionally protected right to travel. "The right to travel is not
ascribed to any particular constitutional provision but is a right so
elementary as 'to be a necessary concomitant of the stronger Union the
Constitution created.' The right to travel protects the right of a
citizen of one state to enter and to leave another state" (¶ 7)
As the court saw it, the statutes affect Jane in the following way.
Her Illinois guardian wishes to place Jane in the nursing home in Grant
County. Because the nursing home is a facility with 16 or more beds, the
facility requires a court order protectively placing Jane there. To be
protectively placed at the nursing home, the circuit court must find
Jane to be incompetent. However, Jane cannot access the court to receive
a protective placement order without first living in a Wisconsin county.
Based on this analysis, the appellate court concluded that Jane's right
to travel to Wisconsin to live at the Grant County nursing home has been
The court also rejected the board's argument that the statute is a
bona fide residency requirement. "Rather, the statute prevents the
County, and hence Jane, from presenting a guardianship and protective
placement petition to the court and from having that court consider the
petition simply because Jane is not a resident of a Wisconsin county.
Wis. Stat. § 55.06(3)(c) restricts Jane's ability to access the
courts for consideration of her only means to move to Wisconsin, a
petition for protective placement" (¶ 19).